Abstract
The debate between legal positivists and antipositivists has progressed to new points of contention. In recent years, a new positivistic theory of law has been put forth by Scott J. Shapiro, called ‘The Planning Theory of Law’. This paper aims to demonstrate how the Planning Theory is able to withstand a powerful antipositivistic objection by Mark Greenberg that social facts, by themselves, are incapable of grounding legal facts in an intelligible manner. Building on David Plunkett’s reply to Mark Greenberg in ‘A Positivist Route for Explaining How Facts Make Law’ (2012), this paper demonstrates how conceptual facts provided to us by the Planning Theory are able to account for the intelligible and reason-based manner in which social facts ground legal facts, thereby creating law without appealing to value facts or morality. For full text, please click here
Highlights
The debate between legal positivists and antipositivists has progressed to new points of contention
The first is a philosophically novel objection to legal positivism by Mark Greenberg[2] arguing that social facts alone cannot account for the intelligibility of law, that is, the reason-based relationship between legal facts and their determinant facts, since social facts cannot by themselves explain their own relevance in determining law
Building on David Plunkett’s Reply to Greenberg,[5] I will argue that conceptual facts about law can explain the relevance of social facts to determining legal facts and in a way that is able to account for our intuitions about legal reasoning that Greenberg appeals to
Summary
The debate between legal positivists and antipositivists has progressed to new points of contention. In this Part, I set out the context of the debate within which my argument in this paper is advanced: Shapiro’s constitutive account of law in the form of the Planning Theory, and Greenberg’s argument from intelligibility – that there is a reason-based relationship between legal facts and their determinant facts which is problematic for legal positivists.
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